Commonwealth v. Lightfoot

46 Ky. 298 | Ky. Ct. App. | 1847

Judge Simpson

delivered the opinion of the Court.

This is an action against a Sheriff on his official bond, and the breach mainly relied upon is, that having an execution in his hands in favor of the relator, he failed, to make a sufficient levy.

It is no doubt the duty of an officer in levying, to take property enough, if to be had, to satisfy the execution in his hands. It is not admitted, however, that the discharge of this duty requires him, at his peril, to seize on property to an extent sufficient, when it is disposed of by public sale, to raise, in any event, a sum sufficient for this-purpose. In the performance of this duty he must exercise a prudent, reasonable and cautious discretion. If he fail to do this it is a violation of his duty. He is, in this respect, to be governed by the rules which influence the conduct of discreet and prudent men in the management of their own affairs. He must take into his possession an amount of property, sufficient when sold, in all reasonable probability, making a proper allowance for the sacrifice usually incident to officers sales, to bring a sum that will pay off the execution in his hands. But he may be liable on the other hand, to the defendant in the execution, if he make an excessive levy. He is, therefore, to perform his duty as Sheriff, having an eye to the security of the plaintiff’s debt, and avoiding all acts of oppression towards the defendant.

Testing the conduct of the Sheriff in this case by this-standard, we aie inclined to the opinion that the levy made by him should be deemed insufficient.

The injury, however, which the plaintiff in the execution sustains by the official delinquency of the officer in its management, determines the extent of the officer’s liability for such delinquency. It does not follow as -a matter of law, that an officer is rendered liable for the whole debt, by a failure to levy an execution in his hands, His liability is fixed by the extent of the injury sustained by the creditor. If the collection of his debt be merely postponed, but its safety not jeopardized, although the officer, in consequence of his misconduct, is liable to an action, he is not to be subjected to the same amount ofdamages, as if the debt had been entirely lost. In this case the plaintiff has failed to manifest by proof, the extent of his injury. He has not produced ány evidence that the defendants in the execution are insolvent, or that he has been unable to collect his debt. He has rested his claim to a recovery of the full amount of his execm tion, solely on the ground of the failure of the officer to make a sufficient levy, without attempting to show the damage he has sustained by such failure. In this description of action the amount of the execution is not the measure of damages; but the actual damage sustained, to be manifested by the particular circumstances of each case: (3 Bibb, 356; Littell's Select. Cases, 132.)

Harlan fy Craddock for plaintiff.

Admitting, therefore, the levy to have been insufficient, and the subsequent conduct of the Sheriff indisposing of the property to have been improper and illegal, we are not able to say that the Court erred in overruling the plaintiff’s motion for a new trial; it not appearing that the verdict which he obtained, was inadequate to meet the full extent of the injury which he sustained.

Wherefore, the judgment is affirmed.